Kiera L. Ladner

Indigenous Governance: Questioning the Status and thePossibilities for Reconciliation with Canada's Commitmentto Aboriginal and Treaty Rights

Research Paper for theNational Centre for First Nations Governance

September, 2006

Indigenous Governance: Questioning the Status and the Possibilities for Reconciliation with

Canada’s Commitment to Aboriginal and Treaty Rights

Draft prepared by Kiera L. Ladner

for the National Centre for First Nations Governance

September 15, 2006

Indigenous peoples have always had governance. This fact has been a matter of great debate

among Canadian politicians and scholars for many years, but there is little doubt that Indigenous

Nations had developed for themselves complex systems of government prior to colonization.

The important questions that need to be asked today do not concern the pre-existence of

Indigenous government but instead raise question of the existence of Indigenous government

today. Are Indian Act band councils governments? What about ‘traditional’ governments?

What about self-government? This paper responds to such questions concerning the status of

Indigenous governments as governments and considers their place in the federal and

constitutional order of Canada. These questions are addressed from the vantage of my existing

work on treaties, treaty federalism and/or treaty constitutionalism, ‘traditional’ governance,

Aboriginal public policy and Indigenous constitutional visions.

More specifically, this paper will question whether Indigenous governments are governments

(focusing on Indian Act band councils). It considers possibilities for reconciling these

governments with Canada’s constitutional order and its constitutional commitment to Aboriginal

and treaty rights. This paper argues that Indian Act governments are not ‘true’ governments and

that it is possible for Indigenous peoples to reconcile their chosen governments with the

Canadian constitutional order. This paper begins with a consideration of ‘traditional’

government and its constitutional status. It then proceeds with a discussion of regime

replacement (the imposition of the band council system) and its status as a government. Finally,

the paper concludes with a discussion of how Indigenous governments can be reconciled with

and strengthened within the Canadian constitutional order. Before proceeding with a discussion

of Indigenous governance, it must be noted that while attempts are made to draw upon a range of

examples and to address diversity, it is next to impossible to write about Indigenous governance

in a manner which speaks to the histories and experiences of all Indigenous nations and First

Nations communities. The complexities of history, the divergent experiences with colonialism,

and the fact that all nations have different political traditions and political systems makes any

conversation about Indigenous government – past, present, and future – extremely difficult and

extremely complex. As such, what is presented in this paper is a generalized account of

Indigenous governance that focuses on the nature and meaning of Indigenous governance

(traditional and band council) and possibilities for decolonization (reconciling and strengthening

Indigenous governance) while paying some attention to diversity.

‘Traditional’ Governance

Whereas all peoples have governance, Indigenous governance is exceedingly different from

most. Indigenous governance is extremely different from the political tradition which emerged

in Europe. European systems of government were designed by and designed to maintain the

privledge and power of those ‘superior beings’ who claimed dominion over the earth and the

right to rule other humans. Meanwhile, as a previous study of Indigenous governance suggests

that:

within the parameters of Indigenous thought, governance is “the way in which apeople lives best together” or the way a people has structured their society inrelationship to the natural world. In other words, it is an expression of how theysee themselves fitting in that world as a part of the circle of life, not as superiorbeings who claim dominion over other species and other humans.i

Indigenous political systems were and are complex structures of governance. By and large, they

were designed to fit with the realities of a peoples’ territory and to provide opportunities to

make, interpret and enforce ‘laws’ in a manner that was consensual and inclusive. In

constructing their political systems, each nation created unique and complex systems of

government. The Blackfoot Confederacy, for instance, created a complex web of clan, society

and bundleii structures of governance at the sub-national, national and confederal levels, each of

which operated within its set area of responsibilities or jurisdictions and in a manner defined and

confined by their own constitutional order.iii Meanwhile, their neighbors the Plains Cree had a

more individualistic system of government consisting primarily of a council of family

representatives with societies and bundles (as institutions) playing a more limited role than is the

case in the Blackfoot political system.iv Created to fit within completely different territorial

realities and to address different political, social and economic realities and needs, Indigenous

political systems were extremely diverse. For example, the nations of the North West Coast

(such as the Haida and Nisga’a), developed the potlatch system of government using inter-dependent and complex structures of clan and national governance. As on the plains, thoughsimilar in structure and function (especially for the untrained eye), each nation had their owndistinct political system.

Indigenous political systems were created and are maintained by a constitutional order.

Interesting – because most non-Indigenous people do not think of Indigenous peoples as having

had constitutions prior to colonization.v In fact, most would be likely to suggest that the only

constitution Indigenous peoples have (or ever had) is the Canadian Constitution. But Indigenous

peoples were not sitting around waiting for colonists to provide them with government. Nor

were they waiting for settlers to provide or assist in creating constitutions which define and

confine a system of government, the rights and/or responsibilities of government officials,

matters of jurisdiction, or the rights and/or responsibilities of citizens. Still, we tend not to think

in terms of Indigenous constitutions or of Indigenous peoples having had constitutional orders

historically. Yet, these constitutional orders provided the teachings, ‘supreme law’, political

philosophies and jurisdictions that were operationalized within the political system.vi

Examples of Indigenous constitutions include the Haudenosaunee Great Law of Peace,vii the

Mi’kmaq teachings of the seven districts that comprise the Grand Council and the rights and

responsibilities of individuals, families, clans and leadership within each districtviii and the adaak

and kungax of the Gitxan and Witsuwit’en nations which lay out the laws (rights and

responsibilities) of each of the houses and the each of the nations.ix Each Indigenous

constitutional order set forth a system of government, provided a defined and limited ability to

make, interpret and enforce ‘law’ within a territory and set forth the rules of the ‘political game’

and the roles and responsibilities of all members of the nation. Such constitutions were not

written documents and quite often – as is the case with the British Constitution – these

constitutional orders consisted of a myriad of documents (albeit ‘oral documents’ such as songs,

stories, ceremony, orations and bundles). Whatever the case, all Indigenous constitutional orders

consist of an array of constitutional ‘documents’ or sources. These constitutional orders provide

for and confine a great diversity of Indigenous political systems and their ability to make,

interpret and enforce law within a given territory. Such constitutional orders were not subject to

the authority of another nation or another government, but they were subject to the people of the

nation and the manner in which they decided to live within and relate to their territory (and other

beings in their territory). This did not change with colonization.

Colonization

Indigenous peoples did not cede to the newcomers their constitutional orders or subject

themselves to the powers of foreign authorities (be they French, British or Canadian).x By and

large, these Indigenous constitutional orders were instead maintained and protected by the

treaties which were negotiated between representatives of Indigenous nations and settler

societies. That is to say, Indigenous leaders sought to protect and thus, maintain their

constitutional orders through treaty relationships just as they had in the past in their dealings with

other Indigenous nations. While the spirit and intent as well of the texts of the treaties are

testament to this, and to the corresponding promises made by colonial nations to this effect,

history tells a story of broken promises. In situations where no treaties were negotiated,

Indigenous constitutions were quite often recognized, affirmed and protected by the terms of the

original relationship between Indigenous nations and the newcomers. Recognized or not,

protected or not, in situations where no treaties were negotiated Indigenous constitutional orders

remain intact. No rights and responsibilities were afforded to other nations to govern within (or

claim) any part of their territories for their own colonial nations. Most importantly, no rights and

responsibilities were delegated by Indigenous nations to colonial nations claim jurisdiction over

or to govern Indigenous nations or their territories. Thus, for Indigenous nations without treaty

(such as those in British Columbia) all rights and responsibilities for governance continue to be

vested in Indigenous constitutional orders.

Where treaties were negotiated, Indigenous peoples did not cede their sovereignty or give up

their constitution orders or their system of government. Rather, they negotiated agreements and

formalized relationships that dealt with such matters as creating and maintaining peace and

friendship between the nations, favourable trading relationships, the sharing of resources (such as

land) within one’s territory and the terms or laws that would govern their relationship. Such

treaties (and other such agreements) were not only negotiated on a nation-to-nation basis - they

also formalized a commitment to a nation-to-nation relationship. These nation-to-nation

agreements allowed the newcomers (and their perpetual offspring) and Indigenous peoples to

peacefully co-exist as autonomous nations within the same territory.xi As such, treaties

recognized and affirmed a right to self-government and sovereignty for each nation (newcomer

and Indigenous) within Indigenous territories. They did not limit such rights, except in areas of

jurisdiction that were explicitly delegated or dealt with in each specific treaty.xii

For example, between 1725 and 1779, a series of treaties between the British Crown and the

Mi’kmaq were negotiated to secure peaceful relations and to establish favourable terms for

trade.xiii These treaties were not land cession treaties nor did they involve cession of Mi’kmaq

responsibility for governing within their territory or living in accordance with their own

constitutional order. Instead, the treaties dealt with matters such as peace and friendship, trade,

and the terms of their relationship. In so doing, the treaties provided rights to the English in

Mi’kmaq territory, while recognizing and affirming Mi’kmaq ‘hunting, fishing, shooting, and

planting’ rights and the continuation of their sovereignty.xiv It should be noted that while the

British used treaties to acquire rights within Indigenous territories such as that belonging to the

Mi’kmaq, and used the treaties to justify and expand their acquisition of land and resources, the

rights of Indigenous nations were typically ignored and colonial responsibilities and/or promises

vis-à-vis Indigenous nations were seldom acknowledged.

Though Indigenous constitutional orders and Indigenous governments were recognized and

protected in the original agreements and in the treaties between Indigenous nations and the

newcomers, colonial authorities have continuously acted as though they had the (god given) right

to acquire all Indigenous territories and to impose their own system of governance over both

Indigenous nations and their lands. Thus, despite promises to the contrary, the treaties, and the

protection that they provided for Indigenous constitutional orders were ignored by colonial

governments and never implemented. Instead, by the mid-1800s, colonial governments were

developing legislation and directly involving themselves in the affairs of Indigenous nations.

This early legislative development of policies of interference and colonization culminated in the

introduction of the Indian Act in 1867. The Indian Act was created by the federal government to

pursue the policy goals of protection, civilization and assimilation.xv

In pursuing their goals, the federal government set forth on a mission of political genocide. By

political genocide I am referring to the federal government’s policies and practices which were

designed to eliminate Indigenous sovereignty, Indigenous governments and Indigenous

constitutional orders.xvi The idea was that Indigenous forms of governance were to be eliminated

by the federal government and replaced by ‘civilized’ governance. These ‘civilized’

governments - the band council system - were modeled after municipalities with very limited

scope and delegated authority. Band councils were created primarily to serve as puppet

governments of the federal government and were charged with the responsibility of providing

local administration for Indian Affairs. One should note that the framers of the Canada’s Indian

policy thought that the band council system of government would provide Indigenous peoples

with the opportunity to familiarize themselves with ‘civilized’ government and to practice

governing themselves.xvii Their idea was that once enough experience had been gained,

Indigenous peoples would cease being Indians under the terms of the Indian Act and First

Nations would be granted ‘self-government’ by way of remodeling band councils as regular

municipal governments (just like other municipalities which fall under the jurisdiction of

provincial governments).xviii To put it another way, the policy goal was simple – once

‘civilized’, Indians and their governments would be assimilated. Such a policy was openly

advocated as a final solution in the Indian Advancement Act of 1884 and in 1969 White Paper.xix

Attempting to realize its goal of creating ‘civilized’ government and assimilating these

governments into the regular municipal system of government, the federal government made

many changes to the Indian Act. Despite all of its efforts (including the White Paper of 1969

and the recent First Nations Governance Act), the Canadian government failed to meet its policy

objectives of ‘protecting’ Indigenous peoples from their own forms of governance, creating

‘civilized’ band council governments and then assimilating such governments into mainstream

Canada as municipalities. Under the Indian Act, self-government was never achieved on a

Canada-wide scale. Indigenous governments were not destroyed. In some cases, the institutions

ceased to exist as governments and continued on as cultural, social and ceremonial institutions

and as the institutions and laws (rights and responsibilities) became associated with the teachings

of the ancestors. In other situations, Indigenous governments were altered as they ceased to exist

as ‘recognized’ governments and were forced ‘underground’ (where they continued to exist as

governments despite the new Indian Act system). Others simply ceased to exist as ‘official’ or

‘recognized’ governments but never went underground and thus, continue to operate as

governments alongside the band council. Still, in other situations Indigenous governments

transformed themselves where necessary into (or simply acted like) band council government.

Aside from the institutions of governance themselves, Indigenous constitutional orders and

Indigenous ways of doing politics were not destroyed as the teachings of the ancestors still

inform political life in every community and influence (if not define and confine) the way that

politics and this the Indian Act band council system is operationalized (works) in the community.

Still, the Canadian government and their colonial predecessors did succeed in creating and

institutionalizing the band council system of government. In most communities, the band

council system of government has done more than simply take root in the community - it has

taken over as the government within that community. But, are these governments? Are band

councils actually governments? More importantly, are they Indigenous governments?

Assessing The Status Of Indian Act Band Councils

In 1924 the Canadian government divested the community of Six Nations at Grand River of the

last remaining ‘traditional’ governments and forcefully imposed the elected band council system.

Since then, the government of Canada has all but refused to deal with traditional governments.

For the Canadian government, it is as if Indigenous governments ceased to exist when they were

supposedly eliminated and replaced by Indian Act band councils. In reality, however, these

regimes continued to exist (and in many cases continue to exist) as the unrecognized government

of the people or those governments which Canada refused to deal with. For all intents and

purposes, Indigenous governments and Indigenous constitutional orders have ceased to exist – at

least according to the Canadian state. But in reality, they continue to exist in most situations (in

some form or another).

Traditional governments continue to be a driving force in many communities. In some they act

independently of the Indian Act band council system (seemingly as an unofficial opposition). In

others they act in harmony with the elected system. Still, in others, traditional governments act

within the imposed government in manner that has transformed the band council system into

some semblance of a hybrid of the two systems.xx Not every community has been able to

maintain their traditional forms of government (in the open or underground) due to the

continuous barrage of assaults by both the state and the church. Still, Indigenous constitutional

orders (or remnants thereof) continue to ground political action and aspirations within

communities. Indigenous peoples – working as individuals or as part of traditional governments,

band councils, national or tribal organizations - continuously seek to exercise the rights that are

vested in their own constitutional orders. Such rights include those pertaining to the harvesting

of resources within their territory, education, chilled-welfare, environmental management,

justice, policing and their right to self-determination.

Unlike the governments of the past, however, Indian Act band councils and organizations such as

tribal councils were not created or maintained by (or within) these Indigenous constitutional

orders. As such these governments do not derive their authority to make, interpret and enforce

laws within a certain territory from Indigenous constitutional orders. Instead, their authority to

govern is vested in the Canadian constitutional order and the delegation of power from the

federal government to Indian Act band councils (and in some cases, organizations such as tribal

councils and the Assembly of First Nations). Though they may accommodate and incorporate

elements drawn from Indigenous constitutional orders, the Indian Act band council system

remains a creature which is vested in and which draws its authority from the colonial order.

Fundamentally, band councils are colonial institutions. Nonetheless, they are colonial

institutions that have taken root in some Indigenous communities and which are regarded by

many individuals and/or communities as legitimate and Indigenous governments. While they are

often viewed as illegitimate governments, institutions of foreign control, and/or simply that form

of government which is required for financial considerations - there is no disputing the fact that

in some communities band councils have gained legitimacy over the years and have come to be

viewed as Indian governments. Despite this, the band council system is, in and of itself, far from

being an Indigenous system of government. It remains a creation of the colonial regime,

exercises only those powers that have been delegated to it by the federal (and in some cases the

provincial) government and is subject to the authority of that regime as established in the Indian

Act and subsequent delegations of financial and administrative authority. Beyond the necessary

questioning of the legitimacy of these governments, one has to question whether these creations

of the colonial regime even governments? Setting aside all other questions, let us consider the

question, are band councils actually governments? The answer to this question lies within the

theoretical realms of law, political science and public administration, and in the practical realm

of local government.

Government, may be defined as:

a body that has the authority to make and the power to enforce laws within a civil,corporate, religious, academic, or other organization or group. In its broadestsense, "to govern" means to administer or supervise, whether over a state, a setgroup of people, or a collection of assets.xxi

Band councils are technically governments, in the sense that they have the power and authority

to make and enforce laws within reserves as established in the Indian Act. But, they are

extremely different than Canada’s two constitutionally defined orders of government – in that

both federal and provincial governments are established by and have their responsibilities set

forth in the Canadian constitution. This is not the case for band councils. In this way, band

councils are similar to municipal or local governments. They are so similar that it is important to

understand the history and status of local governments if one is to fully ascertain the status of

band councils as governments.

Learning From Local Government

The establishment of local or municipal government in Canada occurred during the early

colonial period. Faced with the challenges of centrally administering large colonies, British

authorities created local structures to provide for decentralized (local) administration. These

administrative structures were neither democratic nor representative and were essentially the

appointed administrative arms and ears of the colonial governments. Increased demands for

representative government in the early 19th century gave rise to the Baldwin Act in 1843 that

established a limited franchise and created local governments. Local governments were created

as ‘bodies corporate’ which provided services (such as sewers and roads) that were of interest to

property owners as a corporation.xxii In essence, property holders were provided the

administrative responsibility for those responsibilities decentralized or delegated by colonial

governments.

In 1867, the Constitution provided the provinces with the responsibility for local government in

much the same way as it created Indians and Indian lands as federal responsibility. As provincial

jurisdictions or ‘creatures of the provinces’, local governments are completely dependent upon

the provinces for enabling legislation, delegating or mandating responsibilities, and providing the

means with which to operate. In terms of enabling, local governments are created by provincial

legislation – legislation that can be (and has been) changed at any time regardless of the demands

and needs of local governments. In fact, as was demonstrated in the 1990s in both Ontario and

Quebec, local governments (such as Hull and Scarborough) can be terminated, and/or

amalgamated with ‘the stroke of a provincial pen’ without any consultation.xxiii In terms of

delegated responsibilities, local governments have no inherent jurisdictions and no independent

ability or constitutional authority to make, interpret and enforce laws. Instead, local

governments exercise those powers and administrative responsibilities delegated to them by

provincial governments. While such responsibilities vary provincially, most municipalities have

been provided express legal authority over those matters essential to the property owners (such

as sewers, water, dog pounds, pest control, and planning) and many exercise delegated

administrative responsibilities for social services, community health and education. Finally, in

terms of the financing of local government, the provincial government provides local

governments with transfer payments, the ability to collect property taxes and the ability to charge

user fees for local services (such as public transit). Without such transfer payments or the

delegated ability to collect property taxes, municipal governments would not be able to

operate.xxiv

Local governments in Canada appear to be governments in that they are democratically elected

bodies charged with the responsibility for governing in a certain territory. But, they are not true

governments. Though typically defined as governments, they are not constitutionally defined

governments. Instead, they are publicly elected corporate entities that are responsible for

looking after the interests and needs of property owners and for performing all other duties and

administrative responsibilities as delegated or mandated by provincial governments. In short,

they are subordinate governments. Subordinate or inferior, because local governments are mere

creatures of the provinces such that municipal governments are created by provincial legislation -

legislation that can be repealed or unilaterally altered at any time. They are a subordinate, lesser

form of government because they are not equal players in that they act in areas of delegated

jurisdiction and have no constitutional standing and no areas of jurisdiction of their own. In

short, they are subordinate to federal and provincial governments because they are mere

creatures of provincial government such that they were created by and continue to fall under the

jurisdiction or authority of provincial governments.

In many ways, band councils are similar to municipal governments. Both are subordinate

governments as neither is autonomous within their own defined sphere of influence or

jurisdiction. Neither band councils nor municipalities have an inherent capacity to generate

revenue through taxation. As a result, neither has the capacity to exist as a government and

engage in administration and service delivery without the federal and/or provincial government

providing resources and/or powers of taxation. Neither has the unfettered authority to make,

interpret and enforce laws within a given territory. This is because power is delegated and

authority is vested in those governments whose authority is defined by the Canadian constitution

and in accordance with the jurisdictions set out therein. Neither are full-fledged governments.

They are instead, subordinate to the constitutionally recognized levels of government.

Band councils are even more of an inferior and subordinate form of government than are

municipalities. This is because municipal governments are not subject to the authority of the

provincial governments on a day-to-day basis whereas band councils are consistently subject to

the authority of the federal government and increasingly the provincial governments. Since

confederation, municipal governments have increasingly secured more autonomy in conducting

day-to-day operations and are increasingly being treated as an independent actor within the

federal arena. This is not so for band councils as Indian Affairs continues to influence and

interfere with the day-to-day operations of band councils.

Band councils have the ability under section 81 of the Indian Act to make by-laws in a variety of

areas of interest to local governments (including traffic regulations (excluding speed), the

establishment of dog pounds, the construction and maintenance of local infrastructure such as

roads and ditches, and the regulation of bee-keeping).xxv Band councils have been delegated

much responsibility for administering federal policies and programs such as health care,

education and social services.xxvi Still, Indian Affairs consistently influences and interferes with

band council government. Indian Affairs is able to influence and interfere in a multiplicity of

ways including through its control of all band funds, departmental administrative and

accountability requirements, the use of third party management, its ability to override election

results and thus call elections or appoint new band councils (sections 74-79), its local law

making capacity (section 73 allows the Minister of Indian Affairs to make regulations for such

matters as compulsory hospitalization and the treatment of infectious disease, dog control, fish

and wildlife, and the borrowing of monies for housing and band projects) and its ability to

override all by-laws made by the band council (as outlined in section 82).xxvii

The reality is, band councils have no decision-making ability that is not subject to the authority

of the federal government, no inherent or constitutionally defined jurisdictions or responsibilities

and no ability to generate revenue (delegated or otherwise) or to create the financial capacity to

operate as a government aside from government transfers and income from band owned

businesses (note: several communities have created significant revenue generating capacity

through band owned and operated businesses but this is rare). The subordinate position of band

councils and the federal government’s ability to interfere is further evidenced by the most recent

(2002) attempt to transform the Indian Act and overhaul the band council system. Though this

attempt failed, the plan was to transform the band council system with provisions which

included: different electoral procedures; administrative requirements that would have forced

councils to act even more like administrators of federal policy than like governments with

decision-making capacity; and to make band councils more fiscally accountable to the federal

government.xxviii

That band councils are unequal and subordinate governments is further evident when one

considers that this subordinate position is not even resolved by self-government. That is to say,

the situation is not resolved by the negotiated and imposed system of self-government that the

federal government advocates or the way in which self-government has been defined and

confined by and within federal processes. The federal government recognized the existence of

the inherent right to self-government in 1995 (the Inherent Right policy). Still, federal policies

and programs continue to speak of Indigenous governments exercising delegated responsibilities

rather than of Indigenous governments having inherent and constitutionally recognized

autonomous spheres of influence, responsibility or jurisdiction.xxix Thus, as a number of scholars

have argued, the reality of the situation is far from a realization of self-determination or an

implementation of the inherent right. Such that while the federal government has officially

recognized that Aboriginal peoples have an inherent right to govern themselves, they continue to

insist that the operationalization of this right is dependent on negotiations and the delegation of

jurisdiction. According to existing policy guidelines, the federal government is ‘willing’ to

negotiate the devolution of a range of responsibilities, which include: governing structures,

electoral processes (subject to the Charter), Aboriginal languages and cultures, property rights

including succession and estates, and on-reserve hunting, fishing and trapping. Further to this,

the policy also states that the government may be willing to negotiate the sharing of law-making

authority (for such matters as divorce, fisheries co-management and environmental protection)

whereby primary law-making authority would remain with the federal and/or provincial

government.

Essentially, self-government is about continued subordination of Indigenous governments

through delegated rather than inherent jurisdictions or responsibilities. This subordination is

evident if one considers that all areas of jurisdiction that Indigenous governments will want to

exercise already exist as the jurisdiction of one of the two existing, constitutionally recognized,

orders of government. Self-government in such areas will therefore be subject to the delegation

of authority. More importantly, even with self-government, it would be impossible for First

Nations to obtain equal footing vis-à-vis provincial and federal authorities. First Nations

governments will continue to be subordinate governments which are continuously subject to the

terms of that delegtion of authority since the power or responsibility remains that of the

originating government, as defined by the Constitution. Further, First Nations will continue to

be subordinate governments because of financial dependency and the fact that they will continue

to be subject to the terms of delegation, imposed financial agreements and measures, and the

realities of fiscal imbalance and the federal spending power. This means that self-government in

‘non-essential’ areas will require compliance with the policies and programs of the

constitutionally responsible government.

The continued subordination of band councils post-self-government is further evidenced by the

fact that self-government agreements recreate band councils as corporate bodies. The

designation as bodies corporate does not reflect the status of self-governing First Nations as

Indigenous governments, as treaty nations (or non-treaty nations with all of their original powers

and responsibilities) or as nations with the inherent right of self-determination. It is a status

which subordinates municipal governments and the same is likely to hold true for self-

government.

Examining municipal governments and band governments in a comparative context and using

their status as subordinate governments allows us to understand that many of the problems

associated with band governance are not unique. Both forms of local government are creatures

of other governments that lack jurisdictional independence and the ability to generate revenue.

Both therefore lack the ability to act as full-fledged governments, sovereign within certain

constitutionally defined jurisdictions, within a given territory. More importantly, the status of

municipalities as subordinate governments allow us to easily identify and understand some of the

major deficiencies associated with Canada’s existing self-government policies and practices.

Such that the aforementioned discussion highlights the fact that the taking of a more municipal

styled system of government and negotiating an expanded array of delegated responsibilities

does not alleviate the subordination of Indigenous governments or fundamentally transform the

political system. Self-government simply loosens the ties that bind and reduces the degree of

subordination. This is an extremely problematic conclusion. So problematic that it causes one

to question whether Indigenous governments could ever attain the status of a third order of

government (constitutionally recognized not constitutionally subordinate) given Canada’s

existing Constitution and the division of powers therein.

Reconciling Constitutional Subordination With Aboriginal And Treaty Rights

The inclusion of Aboriginal and treaty rights in the Canadian Constitution in 1982 ushered in

great possibilities for Indigenous peoples, their governments and their constitutional orders. Its

potential is tremendous. The opportunities it imagines for decolonizing both ‘Indian country’

and Canada are almost limitless. It raises the possibility of decolonization because of the

recognition it affords to Indigenous governments and Indigenous constitutional orders in s. 35 as

part of the rubric of Aboriginal and treaty rights. As Henderson et. al. argue, “The spirit and the

intent of section 35(1), then, should be interpreted as “recognizing and affirming” Aboriginal

legal orders, laws and jurisdictions unfolded through Aboriginal and treaty rights. …”xxx This is

to say that Aboriginal and treaty rights are the constitutional manifestation of Indigenous

constitutional orders or the means by which these constitutional orders were recognized and

affirmed in the Canadian constitution. Viewed in this light the potential for decolonization is

tremendous as the constitution not only affords protection to Indigenous constitutional orders but

it incorporates their recognition - through Aboriginal and treaty rights – into, and reconciliation

with, the Canadian constitutional order.

This is essentially an argument of treaty constitutionalism, post-1982. It is a logical

understanding of s. 35 and the Canadian constitution from the vantage of treaty constitutionalism

or treaty federalism. It is an understanding that is both historically grounded and widely held (as

it was in 1982) as it honours the spirit and the intent of the treaties, it does not deny or obfuscate

(real) Indigenous government or Indigenous constitutional orders and it provides a foundation for

decolonization rather than supporting the continuation of the colonial regime and its practices of

political genocide. Further, it is an understanding of the Canadian constitution that speaks of

political reconciliation and thus, the formal reconciliation of Indigenous and Canadian

constitutional orders in a manner that does not avoid the ‘big issues’ of sovereignty,

subordination and negotiated inferiority, colonial legacies, decolonization, and the continued

existence of Indigenous governments (as governments). Most importantly, it is an understanding

of the Canadian constitutional orders that does not deny the third order of government or the

mere existence of Indigenous governments as true governments which are constitutionally

recognized and thus, not subordinate to or creatures of either the federal or provincial

governments.

Understood in this light, s. 35(1) is an affirmation of treaty constitutionalism. As explained

previously, this historically based understanding of the treaties contends that treaties recognized

and affirmed Indigenous constitutional orders, delegated certain powers and responsibilities to

the Crown and provided colonial orders with the ability to govern its own people within the

shared territories. Meaning that each constitutional order would continue to exist independently

- limited only by the terms of their treaties. Where no such treaty was negotiated, the

prerogatives of both ‘sovereigns’ remain intact as neither constitutional order has ever been

subsumed by, limited by and/or incorporated into the other. Thus, regardless of treaty or the lack

thereof, Indigenous rights and responsibilities are vested in and limited by Indigenous

constitutional orders. Further, they are merely ‘recognized and affirmed’ and not created or

vested in s. 35(1) of the Canadian constitutional order.

Accepting that Indigenous constitutional orders not only continue to exist but exist as part of the

Canadian constitutional order as Aboriginal and treaty rights in s. 35(1), leads one to question the

meaning of Indigenous constitutional orders in the contemporary and the meaning of Indigenous

government. Section 35, as so many have argued, contains within it the inherent right to self-

government (not simply self-administration); a right which is recognized in but not created by

the Canadian constitution. Self-governance is a right and a responsibility vested in Indigenous

constitutional orders and as such contains all jurisdictions essential for contemporary Indigenous

governance in Canada. In other words, the right to self-determination is vested in “Aboriginal

legal orders, laws and jurisdictions and unfolded through Aboriginal and treaty rights”xxxi and it

contains all matters of jurisdiction, subject to the limitations agreed to in each nation’s treaty

(historic or future).

Indigenous government is today, just as it was in the past, an expression of or is vested in

Indigenous constitutional orders. That said, the patriation of the Constitution in 1982 radically

transformed Indigenous government in that these constitutional orders are now recognized and

affirmed in the Canadian constitutional order as Aboriginal and treaty rights. In other words,

post-1982 things changed (really, that change has yet to be understood and realized) because

Indigenous constitutional orders (and thus, Indigenous governments) gained recognition within

the Canadian Constitution through Aboriginal and Treaty rights. But, it is not just the

Indigenous governments (i.e. traditional governments) that seek to exercise those rights vested in

Indigenous constitutional orders and expressed as Aboriginal and/or treaty rights. As was

suggested earlier, Indigenous peoples – working as individuals or governments and Aboriginal

organizations - continuously seek to exercise the rights that are vested in Indigenous

constitutional orders. Unlike the governments of the past, however, Indian Act band councils

and contemporary organizations were not created or maintained by (or within) these Indigenous

constitutional orders. Though some may argue otherwise, they do not, as such, derive their

authority to exercise rights and responsibilities or to govern from Indigenous constitutional

orders. Instead, the authority of band councils to govern is vested in the Canadian constitutional

order and the delegation of power from the federal government to Indian Act band councils.

This is the reality of today. Indigenous (traditional) governments are not the primary

governments in most communities. Instead, it is the foreign/imposed system of band council

government that exercise the rights and responsibilities vested in Indigenous constitutions.

Indigenous nations and their constitutional orders must respond to this reality. Indigenous

nations will have to engage in their own constitutional renewal processes to resolve and reconcile

this inconsistency. Further, they will have to engage with other governments and gain

recognition as ‘governments’ by others – it will be particularly necessary to gain recognition

from federal and provincial governments.

Thus, while there is no need to engage in a discussion of self-governance with Canadian

governments in so far as jurisdictional matters, legal orders, laws and structures of governance

are concerned, such a need likely exists within each nation. Indigenous peoples will need to

engage in processes of decolonization for Indigenous governments and Indigenous constitutional

orders have not been predominant in Indigenous politics since the Canadian government

institutionalized the Indian Act system of government in 1876. Just as the Haudenosausee say of

their treaties such as the Covenant Chain, Indigenous constitutional orders need to be dusted off

and polished by both Indigenous governments (possibly by both traditional governments and

band councils – working in a coordinated manner) and the people of the nation. In rekindling

and re-empowering Indigenous constitutional orders or in dusting off and polishing these orders,

Indigenous peoples are likely to need to engage in discussions of renewing, and possibly even

recreating, Indigenous legal and political systems.

Whether the traditional government is renewed, the band council system is recreated (under the

Indigenous constitutional order) or a new political system is created (possibly as a hybrid), the

fact remains, Indigenous governance will need to be dusted off, polished, updated and renewed

within each nation. Such processes will need to engage in discussions of pertaining to issues of

structure (i.e. traditional or band council) as well as matters such as legal capacity, law-making

authority, jurisdiction, and administration. Legal, jurisdictional and administrative necessities

that did not exist at the time of contact or when the Canadian government engaged in political

genocide using the Indian Act exist and will continue to emerge from time to time. Indigenous

governments and the constitutional orders within which their authority is vested, need to adapt

and evolve to respond to ‘modern’ necessities such as the regulation of motor vehicles and

traffic, environmental protection, emergency preparedness and power delivery. These processes

of constitutional renewal have to be engaged just as the Canadian constitutional order is

continuously renewed through constitutional interpretation; executive, legislative and/or judicial

action; and, intergovernmental relations.

Regardless as to how these Indigenous constitutional orders are renewed, there is no need to

negotiate self-government in so far as jurisdictional matters are concerned. But, such a need may

exist to address the poverty that consumes most First Nations. Poverty and revenue sharing

arrangements will need to be addressed because without the wealth of resources and

development opportunities provided by their traditional territories, most First Nations cannot

cope with the financial requirements of government. Beyond fiscal considerations, negotiations

may also be necessary to reconcile and coordinate competing and shared areas of jurisdictions

and to address the sharing of traditional territories and their resources. As such, new treaties will

have to be negotiated – especially where no treaties exist. They will be required to coordinate

and/or reconcile competing jurisdictions, and to address the sharing of both traditional territories

and resources. Resources here would be of vital importance, if Indigenous peoples are to regain

their independence and venture forward with governments that not only have the constitutional

authority to make, interpret and enforce law and public policy within their territory but are to

have the financial capacity to fully engage their political capacity.

Final Thoughts: Looking Forward

Reconciliation of these competing constitutional orders by means of consultation, coordination,

intergovernmental negotiation and judicial interpretation, would not necessarily force Indigenous

governments to accept a position subordinate to federal and provincial governments. Indigenous

government need not be subordinate as Indigenous constitutions provide Indigenous

governments with the power and authority to make, interpret and enforce laws within

autonomous spheres of influence or jurisdictions. Instead, Indigenous governments have the

ability to exist as a parallel to federal and provincial governments, exercising those jurisdictions

afforded by their constitutional order and treaty relationship and as recognized and affirmed

within section 35 of the Canadian constitution while federal and provincial governments exercise

those jurisdictions afforded by their constitutional order under section 91,92 and 93.

The choice remains. Continue the path of subordination whereby band councils have no power

and authority of their own and where the goal is self-government or the negotiation of ones

inferiority and subordination. Or, take up Indigenous constitutions, brush them off, polish them

and renew governance under them as a parallel constitutional order. The first step is to make a

decision. To do so, nations must gather, engage themselves in a discussion of, and educate

themselves about, their constitutional order. They must address their options for the future

collectively, and decide as a community how they want to govern themselves.

The choice remains. Indigenous nations cannot and should not wait around for the federal and/or

provincial governments to ‘get with the program’ and provide opportunities for the

decolonization of Indigenous governance and the renewal of Indigenous constitutional orders.

Indigenous peoples cannot wait around for Canada to act with honour the spirit and intent of the

treaty relationship – through negotiation or implementation – thus making way for the renewal

and recognition of Indigenous governments and Indigenous constitutional orders while making

Indian Act band councils obsolete. Further, the decision to move forward is not that of the chief

and council – nations in their entirety have to make the decision to brush off their constitutional

orders and renew governance and communities cannot wait for employees of Indian Affairs to

create opportunities for this to happen. While this may happen – chiefs and their political

organizations have been able to negotiate political Accords in BC which have the potential to

create a new relationship – communities themselves need to get involved in the decolonization

process or in dusting off of Indigenous constitutional orders and in the renewal of Indigenous

governance. To do so, communities must work from the ground up. People must educate

themselves about their political traditions and begin to the process of dreaming – envisioning a

future where they decide as a community how they want to govern themselves.

To facilitate this process all citizens of the nation must be engaged – Elders, youth, women, men,

Traditionalists, Christians, supporters of traditional government and band council supporters.

While nation-wide processes which facilitate renewal are unlikely to happen over night, the point

is to start. Change must start somewhere. Someone must make a decision to take up their

constitutional order and champion the renewal of governance in their community. That someone

could be the youth as they engage with Elders, demand change and start to envision a different

political reality. That someone could be the women as they change a nation from within by

raising families who understand their political histories and political traditions and who engage

in (or simply plot) transformative politics at the kitchen tables throughout the nation. In any

case, that someone could be you. Think creatively. Learn. Make a choice – subordination or

renewal. Dream – envision renewed governance. Act – spread the vision, facilitate dialogue, talk

about change. Don’t just talk – make change happen.

i K. L. Ladner, “Governing Within an Ecological Context: Creating an AlterNative

Understanding of Blackfoot Governance” (2003) 70 Studies in Political Economy.

ii Bundles are spiritual beings that contain knowledge, teachings and ceremonies. Apart from the

spiritual, within the Blackfoot political system there are several major bundles that containresponsibilities for governance and in turn exist as institutions or structures of governance.These bundles are the foundation of the political system as they give it order, a politicalphilosophy and they contain many of the laws and instructions for both government and thenation. Together with the holders of the bundles and their councils that are charged withresponsibilities set forth in the bundles, the teachings, ceremonies, laws and philosophiescontained in the bundles exist as a structure or institution of governance (alongside clans andsocieties).

iii Ibid.iv J. S. Milloy, The Plains Cree: Trade Diplomacy and War, 1790-1870 (Winnipeg: University ofManitoba Press, 1988).v It should be noted that there the use and/or applicability of such terms and concepts asconstitution, government and sovereignty is debated among both Indigenous and non-Indigenousscholars. For example, Alfred argues that sovereignty is a completely foreign concept which isinherently incompatible with the political histories of Indigenous peoples. I agree with Alfred, tothe extent that Indigenous understandings of constitutionalism and Western-Eurocentric theoriesand history of constitutionalism are extremely diverse and almost incomprehensible. But, giventhat the power of using the tools of the colonizer and the utility of a common language istremendous, I have decided to employ the language of constitutionalism when engaging thecolonizer and in constructing and promoting an Indigenous (pan-Indian) understanding ofIndigenous political history and Indigenous governance.vi K. L. Ladner, “Up the Creek: Fishing for a Constitutional Order” (2005) 38:4 CanadianJournal of Political Science. Also see: T. Alfred Peace, Power, Righteousness: an indigenousmanifesto (Don Mills: Oxford University Press, 1999).vii J. A. Gibson, Concerning the League: the Iroquois Tradition as Dictated in Onandaga, ed.and trans by H. Woodbury (Winnipeg: Alongqoian and Iroquoian Linguistics, 1992).viii J. Y. Henderson, The Mikmaw Concordat (Halifax: Fernwood, 1997). Also see: J. Y.Henderson, M. Benson & I. Findlay, Aboriginal Tenure in the Constitution of Canada.(Scarborough: Carswell Thomson Professional Publishing, 2002).ix A. Mills, Eagle Down Is Our Law: Witsuwit'en Law, Feasts, and Land Claims (Vancouver:University of British Columbia Press: 1994).x P. Macklem, Indigenous Difference and the Constitution of Canada (Toronto: University ofToronto Press, 2001).xi J. Y. Henderson, "Empowering Treaty Federalism" (1994) 58 Saskatchewan Law Review.Also see: K. L. Ladner, “Treaty Federalism: An Indigenous Vision of Canadian Federalisms” inM. Smith and F. Rocher eds., New Trends in Canadian Federalism, (Peterborough: BroadviewPress, 2003).xii S. Cornell, The Return of the Native: American Indian Political Resurgence, (New York:Oxford University Press, 1988).xiii B. Wildsmith, “Treaty Responsibilities: A Co-Relational Model” (1992) 26 University ofBritish Columbia Law Review at 324-336.xiv K. S. Coates, The Marshall Decision and Native Rights, (Montreal: McGill-Queen’s

University Press, 2000) at 28-39.

xv J. L. Tobias, "Protection, Civilization, Assimilation: An Outline History of Canada's Indian

Policy" in J. R. Miller ed., Sweet Promises: A Reader on Indian-White Relations in Canada(Toronto: University of Toronto Press, 1991).

xvi K. L. Ladner, “Rethinking the Past, Present and Future of Aboriginal Governance” in J.Brodie and L. Trimble eds., Reinventing Canada (Toronto: Prentice Hall, 2003).

xvii Ibid. Also see: Tobias supra note 12.xviii K. L. Ladner, & M. Orsini, “The Persistence of Paradigm Paralysis: The First Nations

Governance Act as the Continuation of Colonial Policy” in Canada: State of the Federation(Queens: Institute of Intergovernmental Relations, 2005).

xix Ibid.xx National Centre on First Nations Governance First Nations Governance Pilot Projects:

Challenge and Innovation, Final Report Volume 1 (2005) by Carleton University Centre forCommunity Innovation http://www.fngovernance.org/pdf/Carleton_Vol1.pdf

xxi Wikpedia, http://en.wikipedia.org/wiki/Government#Governmental_operations.xxii C. R. Tindal & S. N. Tindal, Local Government in Canada, 6th ed., (Toronto: Thomson

Nelson, 2004).xxiii A. Sancton, Merger Mania: The Assault on Local Government (Montreal and Kingston:

McGill-Queen’s University Press, 2000).xxiv Tindal and Tindal, supra note 19.xxv Canada, Indian Act (Ottawa: Minister of Supply and Services, 1989).xxvi P. D. Elias, Development of Aboriginal People’s Communities (North York: Captus Press,1991).xxvii Canada, Indian Act, (Ottawa: Public Works and Government Services Canada, 1985).xxviii Canada, BILL C-61, First Nations Governance Act, 1st Session, 37th Parliament, 49-50-51

Elizabeth II, 2001-2002. For an analysis of this Act see: Ladner & Orsini, supra note 15.xxix Canada, Federal Policy Guide Aboriginal Self-Government: The Government of Canada's

Approach to Implementation of the Inherent Right and the Negotiation of Self-Government,(Ottawa: Public Works and Government Services Canada, 1995).

xxx Henderson, et.al., supra note 6 at 432-434.xxxi Henderson et. al., ibid at 433.